Counter-Terrorism Bill

My Lords, I was glad that the noble Baroness, Lady Miller, said that she did not intend opening the whole debate as regards moving details of coroners and inquests from this Bill. After very extensive consultation with noble Lords, we correctly decided that it was best to withdraw this aspect and that we would address it in the context of a much more detailed look at all aspects of coroners and inquests in future legislation. There has been mention of ongoing cases. Clearly, I cannot touch on or talk about those in the Chamber. All I would say, even though I know that the noble Baroness, Lady Miller, did not mean to raise the issue in that way, is that we have to be very careful about raising issues such as ““shoot-to-kill”” as if it is something that is under way. It is very dangerous to mention that on the Floor of the House because there is no way that that is the case. I shall address in detail some of the points made. It is worth saying again that, for a number of reasons, sensitive material cannot be publicly disclosed without harming the public interest. Such material can cause great damage to national security and police investigations of serious organised crime. Indeed, in terrorism cases we have seen how rapidly the people who wish to cause us harm pick up on the techniques we use. Even if they are mentioned only a little bit, those people react by not using certain equipment and so on. As has been said, Article 2 of the ECHR makes it obligatory to hold an investigation into deaths in certain circumstances; there is no discretion not to hold such an investigation. Accordingly, and unlike in the case of criminal prosecutions, the state cannot protect this sensitive material simply by discontinuing the investigation. A means must be found for bringing sensitive material before an independent fact finder while protecting the public interests involved. In order to address this problem in relation to inquests, we intend to bring forward proposals in legislation regarding coroners. That would permit the Secretary of State to issue a certificate requiring an inquest to be held without a jury if, in the opinion of the Secretary of State, the inquest would involve the consideration of material that, in the public interest, should not be made public, including to a jury or interested persons. As a result of certification, the finder of fact would be a coroner rather than a jury, as already occurs in 98 per cent of inquests. The coroner, who would continue to be a fully independent judicial office holder, would be security cleared to receive all relevant material. Any parts of the inquest involving the consideration of material which should not be disclosed publicly would be held in private in the absence of the next of kin. Where necessary, the coroner would be able to appoint independent security-cleared counsel to the inquest to represent the interests of the next of kin and probe all the relevant material on their behalf, including the sensitive material, thereby ensuring that the interests of the family are properly protected. The inquest would, of course, continue to take place in public as far as possible and the next of kin would be able to attend all public sessions with their legal representatives where they have them. Taken together, these proposals will ensure that coroners’ inquests can always be compatible with Article 2 of the ECHR. I have to disagree with the noble Baroness, Lady Miller, because I believe that Amendment No. 48 would allow for the wide disclosure of very sensitive intercept material not just to the coroner but also to juries and other interested parties such as bereaved families. This creates the potential for public disclosure of all intercept material regardless of sensitivity, thereby undermining the very real need in some circumstances to protect from public disclosure such material and the capabilities and techniques by which it was obtained. While Amendment No. 48 would, in principle, allow the finder of fact to have access to all the relevant material, it does so at the expense of preserving the ““ring of secrecy”” which is necessary to protect sensitive techniques, capabilities and sources. It cannot be overemphasised how valuable those capabilities are to the nation. Certainly for over 40 years in peace and war, I have made use of those capabilities; I know that they save lives and help us stop those who want to damage our nation. Disclosure of intercept capabilities would have a real and damaging impact on our ability to gather the intelligence that is vital to our national security. The Chilcot review on intercept as evidence recognised this, and that is why we are taking forward a detailed programme of work to ensure that we can meet the tests set out in the review and allow intercept to be used safely, without putting national security at risk. This amendment affords no safeguards or protections. We recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in as much of an inquest as possible. But it is necessary to strike a balance between the interests of the families and the public interest when there is material that is central to the inquest but which cannot be disclosed publicly. We are confident that the measures we intend to bring forward in coroners’ legislation, with the relevant safeguards, will strike the right balance of enabling the coroner to consider all the relevant material while protecting sensitive material from public disclosure contrary to the public interest. I am aware of the delay—it is an unpleasant and unfortunate delay—but it is right that we should get this legislation correct because we are considering issues that are so important to the nation that we cannot afford to rush it. I know that two cases are outstanding, but this has to be right. The Government will therefore resist Amendments Nos. 48 and 62, which makes a consequential amendment to the Long Title adding a reference to inquests.